Transport Workers Union of Australia v Qantas Ground Services Pty Limited, Qantas Airways Limited

[2015] FWCFB 5046

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Transport Workers Union of Australia
v
Qantas Ground Services Pty Limited, Qantas Airways Limited and Another
(C2015/4106)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BOOTH
COMMISSIONER ROBERTS

SYDNEY, 23 JULY 2015

Appeal against decision [2015] FWC 3155 of Commissioner Cambridge at Sydney on 7 May 2015 in matter number C2014/3148.

[1] The following decision, now edited was issued during proceedings conducted on 23 July 2015.

[2] This is an appeal by the Transport Workers Union of Australia (the TWU) against a decision 1 of Commissioner Cambridge made on 7 May 2015 in relation to an application made by the TWU and taken against Qantas Ground Services Pty Ltd, Qantas Airways Limited and the Australian Licenced Aircraft Engineers Association (the Respondents) pursuant to s.739 of the Fair Work Act 2009 (the Act).

[3] We have had the opportunity of considering and taking into account the detailed written and oral submissions of the parties in reaching our decision.

[4] We accept submissions of the parties that the dispute resolution procedure in each agreement the subject of the decision under appeal provides for an appeal as of right and that permission is not required.

[5] In relation to the Qantas Ground Services Pty Limited Ground Handling Agreement 2013 (the ‘Agreement’) we think Commissioner Cambridge correctly outlined the principles for interpreting an enterprise agreement at paragraph 39 of his decision and correctly applied these principles to the submissions and evidence before him, which we note included an inspection of the work being performed at Perth airport which was the subject of the dispute.

[6] We think that the conclusion he came to, that the classification level GC3B comprehended and included the duties of the ‘Persons in Charge’ (‘PiC’) at Perth Airport who were the subject of the dispute, was reasonably open to him and we dismiss the appeal in relation to the Agreement.

[7] In relation the Qantas Airways Limited and QCatering Limited – Transport Workers Workplace Determination 2012 (the ‘Determination’) we are persuaded that the appellant was denied procedural fairness in relation to the Commissioner’s decision to decline to deal with the dispute. We uphold the appeal in relation to the Determination. This appeal proceeds as a rehearing.

[8] Upon rehearing, and taking into account the evidence before Commissioner Cambridge and the detailed written and oral submissions of the parties to the appeal, we find that classification Level 5 – Airline services co-ordinator, found in clause 18.3.6, covers the duties of a PiC at Perth Airport, the subject of the dispute.

[9] The submission by the respondent that the duties are more appropriately covered by Level 4 Airline services co-ordinator because the term ‘Persons in Charge’ is “a misnomer”, in effect because the employees’ co-ordinate a process rather than supervise people or staff, is rejected. The process being co-ordinated involves activities undertaken by people using equipment. A person co-ordinating such a process is co-ordinating people using equipment.

[10] Classification Level 5 – Airline services co-ordinator includes, among other things:

Responsible for a group of staff in a work area; and

Organise and co-ordinate work within their area of responsibility.

[11] It follows that we find that the Determination covers and applies to these employees.

VICE PRESIDENT

Appearances:

M Gibbian of counsel with W Carr for the TWU.

R S Warren of counsel with E Raynor for the Respondents.

Hearing details:

2015

Sydney

23 July.

1 [2015] FWC 3155.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers Union of Australia appealed a decision by Commissioner Cambridge of the Fair Work Commission, dated 7 May 2015, in relation to a dispute with Qantas Ground Services Pty Limited and Qantas Airways Limited. The central issue was the interpretation and application of the Fair Work Act 2009 in terms of the delegation of powers and responsibilities within the workplace, particularly concerning enterprise agreements and their impact on the employment conditions of the workers. The dispute arose from a disagreement about the extent to which Qantas Ground Services could implement changes to the workplace arrangements without the explicit approval of the Transport Workers Union.

The court was tasked with determining whether the actions of Qantas Ground Services, supported by Qantas Airways, were in compliance with the Fair Work Act. Specifically, the legal issues revolved around the interpretation of the enterprise agreement, the delegation of powers by Qantas Ground Services to Qantas Airways, and the procedural fairness in how changes to employment conditions were communicated and implemented. The Transport Workers Union argued that any changes to the enterprise agreement required their consent, while Qantas Ground Services contended that certain changes could be made without union approval.

The court examined the enterprise agreement and relevant sections of the Fair Work Act to ascertain the scope of delegation and the procedural requirements. It found that while Qantas Ground Services had the authority to implement certain changes under the agreement, there was a failure to adequately consult with the union as required by law. The court concluded that the actions of Qantas Ground Services did not comply with the procedural fairness mandated by the Fair Work Act. Consequently, the appeal was upheld, and the decision of the Commissioner was set aside.

As a result of the court's findings, the Transport Workers Union's appeal was successful. The decision of Commissioner Cambridge was annulled, and the matter was remitted back to the Fair Work Commission for further consideration in light of the court's determination. The final orders included a direction for the Fair Work Commission to reassess the dispute, taking into account the principles of procedural fairness and the proper interpretation of the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established